Tag Archives: Judicial Review

Planning: Secretary of State should have allowed parties further representations

In the High Court case of Gladman Developments Ltd v Secretary of State for Communities And Local Government & Anor [2017] the Secretary of State rejected the Inspector’s recommendation to grant planning permission on appeal.

Gladman’s first ground for seeking judicial review was that the Secretary of State proceeded unfairly and irregularly by relying on “facts”, set out in paragraphs DL29 and 30 of his decision letter, obtained by him subsequent to the Inspector’s report from the Council’s website, without complying with Rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 [S.I.2000 No. 1624] (“the 2000 Procedure Rules) and providing an opportunity to the parties to challenge those facts and make representations.

The court said Secretary of State was taking into account new evidence which led him to a materially different factual finding: namely, that the housing land supply fell in the bracket of 3.7 to 5 years, rather than the 3.73 years as found by the Inspector.

Had representations from the parties been invited, the Secretary of State would have been informed that (1) the LPA did not “currently claim a more than 5-year supply”, and (2) the real contest between the parties was between Gladman’s figure of 3.65 years and the LPA’s figure of 4.15 years.

Rule 17(5) of the 2000 Procedure Rules had been breached. Both sub-paragraphs (a) and (b) were applicable, although the principal focus should be on (b).

The Secretary of State had differed from the Inspector on a matter of fact (a).

The reason why he had done so was because he had taken into account new evidence (b).

“Rule 17(5) [was] not activated if the Secretary of State discovers new evidence but decides at that juncture not to take it into consideration (see the opening words of (b)), but if he does, or is minded to, he must at that stage seek further representations from the parties if he considers that the new evidence is likely to form the basis, in whole or in part, for the ultimate recommendation reached. The Secretary of State does not have to be satisfied that the new evidence would constitute the sole reason for a different recommendation; it merely has to form part of the decision-making process.”

Furthermore, the Rule says “disposed to disagree” which imported a lower threshold.

In summary Rule 17(5) would not apply if the Secretary of State has reached the firm and fixed conclusion that the new evidence will not be taken into account or was clearly immaterial; otherwise, however, it does apply.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning: the death of “interim planning guidance”?

Local planning authorities facing constant changes in legislation and national policy face practical difficulties keeping their local plans under review.

Local planning authorities have produced interim planning guidance to bridge the position between out-of-date development plans and new development plans being adopted.

Regulation 2 of Town and Country Planning (Local Planning) (England) Regulations 2012 (“the 2012 Regulations”) defines “local plan” as “any document of the description referred to in regulation 5(1)(a)(i), (ii) or (iv) or 5(2)(a) or (b), and for the purposes of section 17(7)(a) of the [Planning and Compulsory Purchase Act 2004 (“the 2004 Act”)] these documents are prescribed as [Development Plan Documents (“DPDs”)].”

“Supplementary plan document” (“SPD”) means “any document of a description referred to in regulation 5 (except an adopted policies map or a statement of community involvement) which is not a local plan”.

Regulation 5 of the the 2012 Regulations defines Local Development Documents (“LDDs”):

“Local Development Documents

(1) For the purposes of section 17(7)(a) of the [2004 Act] the documents which are to be prepared as [LDDs] are –

(a) any document prepared by a local planning authority individually or in co-operation with one or more local planning authorities which contains statements regarding one or more of the following

(i) the development and use of land which the local planning authority wish to encourage during any specified period;

(ii) the allocation of sites for a particular development or use;

(iii) any environmental, social design and economic objectives which are relevant to the attainment of the development and use of land mentioned in paragraph (i); and

(iv) development management and site allocation policies, which are intended to guide the determination of applications for planning permission.”

There is another category of LDD recognised by the courts, which the 2012 Regulations are silent about – the ‘residual LDD’.

The categorisation of these different types of documents governs how they will be developed:

– the DPDs/LDDs are to be tested through independent examination;
– SPDs must be formally consulted on; and
– residual LDDs have no procedural requirements.

In R (Miller Homes) v Leeds City Council [2014] the old adopted development plan said designated land should not be developed in the plan period but kept back to meet longer term requirements.

Leeds later produced interim guidance to set the guidelines for the release of safeguarded land.

The High Court said Leeds’ Interim Policy did not fall within regulation 5(1)(a)(iv) because the Interim Policy was not a development management policy: it was a safeguarding policy, rather than a policy which regulated the development or use of land. Thus, the statements in the Interim Policy were not “regulating a development management policy.”

Thus it was neither a DPD/Local Plan nor a SPD. It was a “residual LDD”.

In the recent case of Skipton Properties Ltd, R (On the Application Of) v Craven District Council [2017] the High Court said:

If the document in question contains statements within any of (i), (ii) or (iv) of regulation 5(1)(a) (above), it is a DPD.

“This is so even if it contains statements which, taken individually, would constitute it an SPD or a residual LDD. This conclusion flows from the wording “one or more of the following”, notwithstanding the conjunction “and” between (iii) and (iv).”

In the Skipton case the real question was therefore whether the Council’s Policy NAHC 2016 concerning affordable housing “contained development management policies which guide or regulate applications for planning permission.”

The issue here was not the same as under 2012 Regulation 5(1)(a)(i) because there was no need to find any encouragement; regulation 5(1)(a)(iv) above is neutral.

NAHC 2016 clearly contained statements, in the form of development management policies, which regulate applications for planning permission.

NAHC 2016 contained statements in the nature of policies which related to the development and use of land which the Council wished to encourage, pending the Council’s adoption of a new local plan which would include an affordable housing policy.

“The development and use of land is either “residential development including affordable housing” or “affordable housing”. It is an interim policy in the nature of a DPD. It should have been consulted on; [a Strategic Environmental Assessment] should have been carried out; it should have been submitted to the Secretary of State for independent examination.”

So the court quashed policy NAHC 2016.

In conclusion if any guidance fulfils the criteria for a DPD/Local Plan in the 2012 Regulations, it must be prepared as a DPD/Local Plan. Alternatively, it might be a SPD requiring to be prepared as a SPD.

The scope of Regulation 5(1)(a) of the 2012 Regulations is so wide as to pretty much rule out meaningful ‘residual LDDs’ to provide interim guidance.

The correct course for local authorities is to press on with the timely preparation of up-to-date local plans, and in the intervening period between draft and adoption, to deploy them as material considerations for the purpose of the rights and duties conferred by the 2004 Act.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning: Flooding sequential test should have been applied

Policies in the National Planning Policy Framework (“NPPF”) cover development in “areas at risk of flooding”.

These include the policy for the “sequential test” in paragraphs 100 to 104.

“100. Inappropriate development in areas at risk of flooding should be avoided by directing development away from areas at highest risk, but where development is necessary, making it safe without increasing flood risk elsewhere. … Local Plans should apply a sequential, risk-based approach to the location of development to avoid where possible flood risk to people and property and manage any residual risk, taking account of the impacts of climate change, by:

applying the Sequential Test;

if necessary, applying the Exception Test;

using opportunities offered by new development to reduce the causes and impacts of flooding; ….”

The Planning Practice Guidance, issued by the Government has a section on “The sequential, risk-based approach to the location of development”. It gives guidance on the sequential test.

“….The aim is to steer new development to Flood Zone 1 (areas with a low probability of river or sea flooding). Where there are no reasonably available sites in Flood Zone 1, local planning authorities in their decision making should take into account the flood risk vulnerability of land uses and consider reasonably available sites in Flood Zone 2 (areas with a medium probability of river or sea flooding), applying the Exception Test if required. Only where there are no reasonably available sites in Flood Zones 1 or 2 should the suitability of sites in Flood Zone 3 (areas with a high probability of river or sea flooding) be considered, taking into account the flood risk vulnerability of land uses and applying the Exception Test if required.”

In Watermead Parish Council v Aylesbury Vale District Council [2017] planning permission was sought and obtained for a crematorium. Prior to the planning committee meeting the planning officer’s report had mentioned the sequential test but said “The proposal relates to an already developed site, and therefore a sequential assessment is unnecessary.”

The Court of Appeal said the sequential test:

“involves an assessment of the availability of “sites appropriate for the proposed development in areas with a lower probability of flooding”. It is required not only for “new development” proposed on sites which have not previously been developed but also for “new development” on land that is already developed.”

None of the express exemptions to that applied here.

The officer’s advice that under NPPF policy a sequential test was unnecessary in this case because the proposal was for “an already developed site” was based on a misinterpretation of the policy. This was an error of law.

A local planning authority could depart from national planning policy but if it did that, it must do so consciously and for good reason. That was not one here and this was not a case where it could be said that the mistake would have made no difference to the planning decision. Accordingly it was quashed.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Application could be refused despite lack of 5 Years’ Housing Supply

Paragraph 49 of the National Planning Policy Framework (“NPPF”) states that:

“Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.”

Paragraph 14 of the NPPF provides amongst other things:

“…this means….[unless material considerations indicate otherwise]:…

where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:

– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole [(“the First Condition“)]; or

– specific policies in this Framework indicate development should be restricted [(“the Second Condition“)].”

Paragraph 14 of the NPPF does not supplant, but operates within, the framework for determining planning applications provided by section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004.

The weight to be given to the policy in paragraph 14 itself is a matter for the decision maker provided that he does not act unreasonably.

“The Alternative Case Approach”

Where relevant policies are out-of-date, Paragraph 14 of the NPPF (above) is to be interpreted as providing two alternative cases where it’s presumption in favour of granting planning permission is rebutted.

The use of “or”, rather than “and”, to describe the relationship between the two conditions supports that interpretation.

In the High Court case of Barry Thorpe-Smith & Anor v Secretary of State for Communities And Local Government & Anor [2017] the Inspector had found (i) that the proposed development was not in accordance with certain out-of-date “saved” Local Plan policies; and (ii) that notwithstanding the absence of a 5 year housing land supply in the Council’s area and the guidance in paragraph [14] of the NPPF, the benefits of providing the proposed housing did not indicate that planning permission should be granted.

Applying “The Alternative Case Approach”

The court said that because the Inspector had decided that the Second Condition applied, he had no need to consider “alternatively” whether the First Condition also did.

The remaining question then was whether there was any other “material consideration” that indicated that the Inspector should override the saved development plan and grant permission for the development. In fact he found that “there [were] no other material considerations that suggest[ed] it should be allowed” given that it was not “sustainable development” anyway.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Application cannot be made for a development that has already begun

Class A in Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 provides limited planning permission for “the enlargement, improvement or other alteration of a dwelling house”. Condition A.4(1) provides that a number of other conditions apply to development permitted by Class A which exceeds the limits in paragraph A.1(f) but is allowed by paragraph A.1(g) including:

“(10) The development must not begin before the occurrence of one of the following-

(a) the receipt by the developer from the local planning authority of a written notice that their prior approval is not required;

(b) the receipt by the developer from the local planning authority of a written notice giving their prior approval; or

(c) the expiry of 42 days following the date on which the information referred to in sub-paragraph (2) was received by the local planning authority without the local planning authority notifying the developer as to whether prior approval is given or refused.”

In Winters v Secretary of State for Communities And Local Government & Anor [2017] the High Court ruled that an application cannot be made under sub-paragraph(2) of Condition A.4 in respect of a development that has already begun.

The High Court said (my emphasis):

what the application to the local planning authority, and any approval or refusal given, under condition A.4 is concerned with is a “proposed development” that Class A is capable of authorising, not a development that has already been begun or one which is partially or wholly completed.

Thus the information that has to be provided to the local planning authority under sub-paragraph (2) of Condition A.4 includes a written description of “the proposed development” and a plan indicating the site and showing “the proposed development”. That has to be provided by the developer, as sub-paragraph (2) states, “before beginning the development”. Each adjoining owner or occupier must be notified (under sub-paragraph (5)) of “the proposed development” by a notice describing “the proposed development” and the address of “the proposed development”. If any owner or occupier objects to “the proposed development”, then, under sub-paragraph (7), the “prior approval” of the local planning authority is required as to the impact of “the proposed development” on the amenity of any adjoining premises. Thus, when it is provided (in subparagraph (10)) that “the development” must not begin before notice that prior approval is not required or has been given or, if such a notice is not given, the expiry of 42 days from the date when the information referred to in sub-paragraph (2) was received and (in sub-paragraph (11)) that “the development must be carried out” either in accordance with the details approved or the information provided under sub-paragraph (2), “the development” being referred to is the developer’s “proposed development”. That is what such information and any prior approval relate to.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning inspector had sufficient regard to viability of Grampian Condition

Paragraphs 203 and 206 of the National Planning Policy Framework say:

“203. Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations. Planning obligations should only be used where it is not possible to address unacceptable impacts through a planning condition…..

206. Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.”

Planning Practice Guidance provides:

“When can conditions be used relating to land not in control of the applicant?

Conditions requiring works on land that is not controlled by the applicant, or that requires the consent or authorisation of another person or body often fail the tests of reasonableness and enforceability. It may be possible to achieve a similar result using a condition worded in a negative form (a Grampian condition) – i.e. prohibiting development authorised by the planning permission or other aspects linked to the planning permission (e.g. occupation of premises) until a specified action has been taken (such as the provision of supporting infrastructure). Such conditions should not be used where there are no prospects at all of the action in question being performed within the time-limit imposed by the permission.

Where the land or specified action in question is within the control of the local authority determining the application (for example, as highway authority where supporting infrastructure is required) the authority should be able to present clear evidence that this test will be met before the condition is imposed.”

In Bellway Homes Ltd v Secretary of State for Communities And Local Government & Anor [2015] the developer was proposing a housing development on Waggs Road in Congleton. The road and it’s footpath were narrow and speed bumps were considered necessary if it was to be able to support the development safely.

The Planning Inspector found:

“a) There has been no public consultation on the road hump proposals and the detailed design of the humps remains unspecified.

b) The Council has no adopted policy on speed humps but “advises that similar proposals have been rejected as a result of objections from residents”. The Inspector accepts that she cannot second guess the outcome of any consultation on “a detailed version of the submitted scheme or indeed any alternative scheme”. In those circumstances the Inspector notes that she: “cannot be confident that a scheme of speed reduction provided by way of a Grampian Condition could or would, in this case take account also of potential effects on road users and local residents”. The conclusion then is, given the uncertainties identified by the Inspector, that “neither the submitted proposals nor a Grampian Condition can reasonably be relied on to overcome the adverse effects the proposed development would have on the safety of pedestrians and drivers in Waggs Road.”

Upholding the Planning Inspector’s decision to reject the Developer’s appeal against the refusal of planning consent, the High Court was:

“satisfied that the Inspector’s references to the absence of probability that the works would be completed does not establish that she made any error in approaching her decision. Whilst the Inspector did not make specific reference to it, it seems to me that she almost certainly had in mind the need for all planning conditions to be enforceable, precise and reasonable in coming to her conclusion. ”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning permission failed to properly address impact on Green Belt openness

The National Planning Policy Framework (“NPPF”) says:

“89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this … [include]:

provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it;
… ”
In Boot, R (On the Application Of) v Elmbridge Borough Council [2017] the Defendant’s development plan policy DM17 – Green Belt (Development and New Buildings) said:

“b. Built development for outdoor sport, recreation and cemeteries will need to demonstrate that the building’s function is ancillary and appropriate to the use and that it would not be practical to re-use or adapt any existing buildings on the site. Proposals shall be sited and designed to minimise the impact on the openness of the Green Belt and should include a high quality landscape scheme.”

The planning officer’s report found that the new £17.9m sports ground use proposed, and the buildings and structures required to support it, including the pavilion, floodlights, fencing and car park, would have an impact on the openness of the Green Belt but considered that it would not be significant.

The Defendant’s planning committee accepted in its Statement of Reasons that:

“There will be a limited adverse impact on landscape and visual amenity and ‘openness’ of the Green Belt, however there will also be significant benefits in terms of facilitating the beneficial use of land within the Green Belt by providing significant opportunities for public access and outdoor sport and recreation by improving damaged land which is supported by para 81 of the NPPF.”

Quashing the planning permission the High Court agreed with the Applicant’s barrister that:

“if a proposal has an adverse impact on openness, the “inevitable conclusion” … is that it does not comply with a policy that requires openness to be maintained. A decision maker does not have “any latitude” to find otherwise, based on the extent of the impact. In the present case the Defendant concluded that there was an adverse impact on openness, but nevertheless granted permission without giving consideration to whether under paras 87 and 88 of the NPPF there were very special circumstances that would justify it.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Old policies can remain part of a development plan

Where planning applications fall to be considered what is the position where old policies remain part of the development plan?

The starting point, for the purposes of decision-making, remains section 38(6) of the Planning and Compulsory Purchase Act 2004.

This requires planning decisions to be made in accordance with the development plan – and, so, in accordance with those old policies and any others contained in the plan – unless material considerations indicate otherwise.

The National Planning Policy Framework (“NPPF”) and the policies it sets out may, depending on the subject-matter and context, constitute significant material considerations.

The mere age of a policy does not mean it ceases to be part of the development plan. The policy continues to be entitled to have priority given to it.

Paragraph 209 and Paragraph 210 to 215 in Annex 1 to the NPPF provide as follows:

“209. The National Planning Policy Framework aims to strengthen local decision making and reinforce the importance of up-to-date plans.”

“211. For the purposes of decision-taking, the policies in the Local Plan (and the London Plan) should not be considered out-of-date simply because they were adopted prior to the publication of this Framework.

212. However, the policies contained in this Framework are material considerations which local planning authorities should take into account from the day of its publication. The Framework must also be taken into account in the preparation of plans.

213. Plans may, therefore, need to be revised to take into account the policies in this Framework. This should be progressed as quickly as possible, either through a partial review or by preparing a new plan.

214. For 12 months from the day of publication, decision-takers may continue to give full weight to relevant policies adopted since 2004 even if there is a limited degree of conflict with this Framework.”

Paragraph 215 sets out the approach to be adopted in relation to old policies and requires an assessment to be made as to their consistency with the policies in the NPPF.

The fact that a particular development plan policy may be old is irrelevant in any assessment of its consistency with NPPF policies.

“215. In other cases and following this 12-month period, due weight should be given to relevant policies in existing plans according to their degree of consistency with this framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).”

In the Court of Appeal case of Gladman Developments Ltd v Daventry District Council & Anor [2016] Gladman had made an application for planning permission in May 2014 for residential development of up to 121 dwellings on two fields next to Weedon Bec village. It was not in-fill development of the village. The application was directly contrary to saved Local Plan policies HS22 and HS24.

The Council refused planning permission, especially relying on those saved policies.

Gladman argued that reduced or no weight should be given to policies HS22 and HS24 as they were out of date.

This was based on two principal arguments:

1. the Local Plan related to the period 1991-2006, and its evidence base related to that period, and the Structure Plan, which had been superseded and was no longer a statement of current planning policy; and

2. policies HS22 and HS24 related to housing supply and the Council could not show that it had a five year supply of deliverable sites for residential development, so those policies were deemed to be out of date under para. 49 of the NPPF.

In fact the Council was able to show that with current saved housing policies it had a five year supply of deliverable sites for residential development and also that policies HS22 and HS24 reflected a high degree of consistency with a range of policies in the NPPF, not just housing policies, and so they ought to be given considerable weight despite the length of time they had been in place.

The fact that the Council was able to demonstrate that it had the five year supply showed that there was no unmet housing need which required policies HS22 and HS24 to be overridden in that case. In short the current policies were not “broken” since they could be applied here without jeopardising the five year housing supply objective.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Contribution towards element of composite development was lawful planning consideration

Planning law recognises the possibility that an application for planning permission may be for a development which includes a number of elements, a composite development. Here, the advantages of one element can be balanced against the disadvantages of another.

In Campaign To Protect Rural England (CPRE), R (On the Application Of) v Dover District Council [2015] China Gateway International (CGI) Limited (“CGI”) applied for planning permission for an extensive development on two sites on the western fringe of Dover. Namely:

(a) outline planning permission for:

(i) a very large residential development at Farthingloe;
(ii) a much smaller residential with hotel and conference centre development at Western Heights; and
(iii) pedestrian access and landscaping work between the two sites;

(b) full planning permission for:

(i) the conversion of existing buildings on both sites for a variety of purposes; and
(ii) the conversion of the Drop Redoubt at Western Heights into a visitor centre and museum.

Landowners agreed in a Section 106 Agreement to make a total payment of £8,132,499 towards a variety of purposes.

Objectors challenged a £5 million “heritage contribution” to be expended on the refurbishment of the Drop Redoubt and it’s conversion to a visitor centre and museum. It would not cover the whole costs.

Payments of £825,000, to assist making a countryside access area between the two sites, and £27,000, to afford a paved footpath between them, were also agreed.

CPRE said the heritage contribution of £5 million was unlawful and so should have been disregarded by the planning committee when determining CGI’s application for planning permission.

At all times material to this case the lawfulness of a planning obligation under section 106 fell to be determined by regulation 122 of the Community Infrastructure Levy Regulations 2010 which provided:

“(2) This regulation applies where a relevant determination is made which results in planning permission being granted for development.

(3) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is —

(a) necessary to make the development acceptable in planning terms;

(b) directly related to the development; and

(c) fairly and reasonably related in scale and kind to the development…..”

CPRE said where the planning obligation under a section 106 agreement was to make a payment of money for a specified purpose, “development” in regulation 122(2) meant that part of the development, for which planning permission is sought, which funds the contribution. Here it was the development of the Farthingloe site which would fund the heritage contribution for the Western Heights site. So it was unlawful and should have been disregarded.

Disagreeing with CPRE the High Court said “development” in regulation 122(2) meant the development in respect of which a “relevant determination”, namely the grant of planning permission under section 70 of the Town and Country Planning Act 1990, is made.

Planning permission here was granted for a composite development of the Farthingloe and Western Heights sites, and access land in between.

The lawfulness of the planning obligation to fund the heritage contribution must therefore be judged by reference to the development for which planning permission was granted; in other words the whole development, not solely or principally the Farthingloe site.

“Treated as a composite development, the questions posed by regulation 122 answer themselves. The heritage contribution was necessary to make the development acceptable in planning terms. Without it, the advantage which went a considerable way to balancing the disadvantage of development on an area of outstanding natural beauty could not be achieved. It was directly related to the development. It was to be expended on a part of the development for which planning permission was given, the restoration of the Drop Redoubt and the creation of a visitor centre and museum. It was fairly and reasonably related in scale and kind to that part of the development — at least that sum was required to fund it — and also to the development as a whole, which was understood, rightly, by all to be a major scheme.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning: Failure to identify development as inappropriate to area

In Lensbury Ltd, R (On the Application Of) v Richmond-Upon-Thames London Borough Council [2016] a development at Teddington Weir, Teddington Lock, Teddington was in an area designated as Metropolitan Open Land (“MOL”).

The London Plan 2015 applied – in particular policy 7.17 which provided as follows:

“Policy 7.17 Metropolitan Open Land

Strategic

A. The Mayor strongly supports the current extent of Metropolitan Open Land (MOL), its extension in appropriate circumstances and its protection from development having an adverse impact on the openness of MOL.

Planning decisions

B. The strongest protection should be given to London’s Metropolitan Open Land and inappropriate development refused, except in very special circumstances, giving the same level of protection as in the Green Belt. Essential ancillary facilities for appropriate uses will only be acceptable where they maintain the openness of MOL.”

On appeal the Court of Appeal said in granting planning permission the Council had:

“gone badly wrong in its consideration of the planning merits of the application for development in this case. It failed to identify the development as inappropriate development in an area of MOL requiring the strongest protection against such development. It failed to consider whether, notwithstanding the inappropriateness of the development, “very special circumstances” exist to justify the grant of planning permission, and it is far from obvious that they do. On the materials available before the court.”

Policy 7.17 said without “very special circumstances”, planning permission should be refused:

“to safeguard important open areas from “death by a thousand cuts”, by a series of planning permissions being granted for developments each apparently reasonable in itself but having a serious cumulative detrimental effect on the important public interest in the continuing openness of MOL and the Green Belt.”

Accordingly, “the Council failed to appreciate that the planning application was for development which was inappropriate in the context of MOL and therefore failed to ask itself the critical question, whether very special circumstances existed which justified the grant of planning permission.”

Nor was it appropriate for the court to execise its discretion not to quash the decision:

“In light of the strictness of the policy in policy 7.17 and the importance of the public interest it protects, I do not think that it can be said that it is highly likely that the outcome for the Appellant would not have been substantially different if the conduct complained of (i.e. failure to understand and apply policy 7.17 correctly) had not occurred.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.